Kim v Minister for Immigration
[2007] FMCA 1580
•25 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1580 |
| MIGRATION – Visa - Business visa – Subclass 457 (Business) (Long Stay) visa – cancellation of visa. |
| Migration Act 1958 (Cth) ss 116, 119, 359A |
| Minister for Immigration & Multicultural Affairs v Yousef 75 ALJR 1105 Nicholas Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors 185 CLR 259 |
| Applicant: | JEONG DAE KIM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 2567 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 January 2007 |
| Date of last submission: | 17 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2567 of 2006
| JEONG DAE KIM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal. The application was heard before me on 17th January 2007. The Migration Review Tribunal signed its decision and handed that decision down on 18th August 2006.
The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Multicultural Affairs to cancel the Applicant's Subclass 457 (Business) (Long Stay) visa. The Applicant seeks judicial review of that decision.
The Applicant, through his solicitors, filed an application and an affidavit in support on 12th September 2006. The Applicant, through his solicitor Mr Dobbie, filed an amended application. I granted leave for that amended application to be filed in Court. The application seeks the following orders:
a)A writ of prohibition prohibiting the Minister and the Minister's servants or agents from taking action or requiring that action be taken by others on the Migration Review Tribunal's decision.
b)A writ of certiorari removing the Migration Review Tribunal's decision into this Court to be quashed.
c)A writ of mandamus requiring the Tribunal to consider and determine the applicant's application for review according to law.
Background
The background to this matter is that the Applicant is a citizen of the Republic of Korea. He applied to the Department of Immigration and Multicultural Affairs for a Temporary Business Entry (Class UC) visa on 8th May 2001. The Applicant was granted a Subclass 457 (Business) (Long Stay) visa on 16th May 2001. The Tribunal noted that the Applicant was notified that a delegate of the Minister was considering cancelling that Subclass 457 visa and the decision to cancel the visa was made on 16th December 2003.
The Applicant sought a review of the delegate's decision from the Migration Review Tribunal on 24th January 2005. The Tribunal, differently constituted, affirmed the decision of the delegate on 15th July 2006 so the Applicant then sought a review of that decision by the Federal Magistrates Court.
On 19th April 2006, Smith FM made orders in proceedings of Kim & Ors v The Minister for Immigration & Multicultural Affairs as follows:
i)Certiorari be granted to quash the decision of the Second Respondent made on 15 July 2005.
ii)Mandamus be granted requiring the Second Respondent to review, according to law the decision of the delegate of the Minister to cancel the First Applicant's Temporary Business Entry (Class UC) visa.
iii)Mandamus be granted requiring the First Respondent to consider the student visa applications lodged by the second and third applications on or about 27 December 2004.
iv)The First Respondent pay the Applicant's costs fixed in the sum of $4600.00.
Migration Review Tribunal Hearing
The Tribunal invited the Applicant to attend a hearing and the Applicant's children each gave evidence concerning their current study programs and their desire to be able to complete those programs.
The Tribunal wrote to the Applicant on 25th May 2006, in a letter which referred to the provisions of s.359A of the Migration Act. That letter was headed "Invitation to Comment on Information" and explained to the Applicant that s.359A of the Act required the Tribunal to explain, and invite comment on, ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that was under review’.
The letter invited the Applicant to comment in writing on certain information by 13th June 2006. The information was as follows:
Information on the Departmental records indicates that on 16 May 2001 you were granted a Temporary Business visa (Subclass 457) on the basis of a sponsorship by your proposed employer I-Com Group Pty Ltd. In April and May 2003 the Department attempted to contact I-Com Group Pty Ltd for the purposes of monitoring its performance as a business sponsor and its compliance with the undertakings it made with respect to its Subclass 457 visa holder employees. At the time of its application those undertakings were set out in the Application for Approval as a Business Sponsor (Form 1067). They may be summarised as follows:
· accept financial responsibility for obligations to the Commonwealth for sponsored nominees and dependants while in Australia, unless that nominee has, with the agreement of DIMA, subsequently been nominated by another employer and that other employer has become responsible for that nominee;
· notify DIMA immediately if their nominee ceases employment with them. Sponsors should inform DIMA within 24 hours;
· accepts financial responsibility directly or through acceptable medical insurance arrangements for all medical and hospital costs that may be incurred in Australia by their nominee or dependents;
· undertakes to be responsible for repatriation costs for the visa 457 holder and dependants;
· undertakes to comply with Australian industrial laws, Australian levels of remuneration and conditions of employment;
· undertakes to comply with immigration requirements;
· undertakes to cooperate fully with DIMA officers in monitoring visa 457 holders, including providing monitoring information as required by DIMA;
· undertakes to cooperate fully in audit checking (if required) in relation to all matters concerning the employment of visa 457 holders;
· undertakes to notify DIMA of any change in circumstances that may affect the employer's capacity to honour their sponsorship obligations or that represents a material departure from the information provided for assessment of the sponsorship application;
· accepts as good practice the desirability of creating appropriate career opportunities for Australian residents both in Australia and, if the employer operates internationally, overseas; and
· accepts that overseas recruitment must not counter Government training policies and objectives of producing a highly skilled and flexible Australian workforce.
I-Com Group Pty Ltd did not respond to the Department's requests for information and a site visit to the business premises on 28 May 2005 revealed that the business was no longer operating at that address.
Based on this information the Department found that you business sponsor had not complied with its undertakings to cooperate fully with DIMA officers in monitoring visa 457 holders, including providing monitoring information as required by DIMA. The Department also found that the sponsor had not notified its change of address or business premises which would represent a material departure from the information provided for assessment of the sponsorship application. The Department found that your sponsor had not complied with the undertakings it had given in the form 1067 and did not continue to satisfy the requirements for approval as a business sponsor.
This information is relevant to the review because your visa was granted on the basis that you would be employed by a business sponsor who complied with its undertakings and continued to satisfy the requirements to be approved as a business sponsor. (see Regulation 1.20(D)(2)(f) and 2.43(1)(i) and (ia) of the Migration Regulations).
Section 116 of the Migration Act provides that the Minister (or her delegate) may cancel the visa if he or she is satisfied that prescribed ground for cancelling a visa applies to the holder. These prescribed grounds include in the case of the holder of a Subclass 457 (Business) (Long Stay) visa, that the visa holder's current business sponsor has not complied with the undertaking given by the business sponsor in accordance with approved Form 1067 or does not continue to satisfy the requirements for approval as a business sponsor.
If the Tribunal finds that a prescribed ground exists for cancelling the visa the Tribunal may affirm the decision to cancel your Subclass 457 visa.[1]
[1] See Court Book at pages 214-215
The Applicant's solicitors wrote to the Migration Review Tribunal on 6th June 2006 advising that they had been instructed to act on behalf of Mr Kim in relation to the remittal of his matter to the Tribunal from the Federal Magistrates Court.
On 13th June 2006, the Applicant's solicitors again wrote to the Migration Review Tribunal in reply to the s.359A notice. The text of the letter, where relevant, was as follows:
1. The applicant is not able to confirm that DIMA tried to contact the applicant's sponsor, I-Com Group Pty Ltd, as he was not present at the time such contact was attempted. Assuming that that information contained in the MRT's notice is correct, the applicant cannot confirm whether I-Com Group Pty Ltd responded to DIMA's requests or not. The applicant cannot confirm whether or not DIMA made a site visit on 28 May 2005. However, there is no reason to believe that the information set out in the MRT's notice is not correct. As such and, subject to the submission to follow, it would appear to be a failure by the sponsor to comply with its undertakings as set out in the MRT's notice. However, there might not have been a breach of sub-regulation 2.43(1)(l)(i). That is because the sub-regulation includes the following elements:
a) That the person is the holder of a Subclass 457 visa; and
b) That the Subclass 457 visa was granted to that person on the basis of a standard business sponsorship; and
c) There has to be a nomination in respect of that person of an activity under regulation 1.20G or 1.20GA.
Sub-regulation 1.20H(5) confirms that a nomination ceases to have effect either at the end of twelve months after the day on which it was approved; or when a Subclass 457 visa is granted to the individual proposed to be employed.
In the applicant's case, there was no nomination of an activity at the time the visa was purportedly cancelled, as the nomination had ceased. The MRT can therefore not find that there was a ground to cancel the visa pursuant to Section 116(1)(g) and sub-regulation 2.43(1)(l).
2. In the event that the MRT finds that there has been a breach which, prima facie, gives rise to affirm the decision under review, it is submitted that the MRT should exercise its discretion so that the correct and preferable decision is that the visa not be cancelled. These reasons include:
a) Significant hardship that will be caused to the applicant and his family members. The applicant's children are presently studying in Australia and have outstanding student visa applications before DIMA. The applicant would like to try and obtain a further sponsorship or obtain a visa to remain in Australia with his children while they study (for example, a student guardian visa) in Australia.
b) We note that the applicant has been compliant and co-operative with the Department on previous occasions.
c) We note that the applicant did not breach his conditions. Rather, the cancellation was premised on the failure by the sponsor to comply with its sponsorship undertakings.
d) The applicant and his children have been in Australia for over 5 years. The applicant should not be deprived of an opportunity to apply for and obtain further visas in Australia.
e) A cancellation of the applicant's visa would reflect adversely on the applicant in relation to future Australian visa applications, including giving rise to risk factors as he would be departing Australian on a Bridging Visa. It would also adversely affect his entry to other countries, having to declare the cancellation when asked if he had to leave a country to avoid removal, or if he had a visa cancelled.
In the light of the above information, it is submitted that the visa held by the applicant should not be granted.[2]
In my view that is an error and it should read:
[2] See Court Book at pages 219-220.
It is submitted that the visa held by the applicant should not be "cancelled".
The Tribunal wrote to the Applicant's solicitors on 14th June 2006 inviting the Applicant to attend a face to face hearing at 11:00am on 10th July 2006. The Applicant's solicitors forwarded a further letter to the Tribunal on 16th June 2006 referring to their client's application for review presently before the Tribunal. Relevantly that letter said as follows:
We note that the delegate's decision to cancel Mr Kim's visa was a nullity because mandatory preconditions to valid exercise of the cancellation power were not met:
1. A notice was not sent to Mr Kim at his notified address for service.
2. The letter purporting to be a notice was not a notice because it does not state that the Minister considers that there might be grounds for cancellation. Rather, it is the Department that is referred to in the letter.
We note the Full Court authorities of Zubair and Shahid Ahmed confirm that the MRT can affirm a decision, even when no valid notice was given. Neither of those authorities stand for the proposition that the exercise of the MRT's powers in affirming the decision to cancel means that the purported cancellation made by the delegate changes from a nullity to something other than a nullity. That purported decision remains a nullity.
We submit that even taking those authorities into account, the MRT cannot affirm the decision under review. The cancellation of Mr Kim's visa was a purported cancellation. It was not cancelled in law. The visa in question has now expired. It expired on 16 May 2005. A visa that is expired cannot be cancelled. As such, the correct and preferable decision is that the decision under review be set aside.[3]
[3] See Court Book at page 226.
The Applicant attended the hearing of the Tribunal which took place on 10th July 2006. He gave evidence with the assistance of an interpreter. The Tribunal also received oral evidence from the Applicant's two children. The Tribunal noted that the Applicant had first arrived in Australia on 16th April 2001 as the holder of a Subclass 976 Visitor (Tourist) visa which was valid for stay until 16 July 2001. On 16th May 2001, he was granted a Subclass 457 visa which was valid until 16th May 2005. Attached to that visa was condition 8107 which, at the time of the visa grant was:
The holder must not change employer or occupation in Australia without the permission in writing of the secretary.
The Tribunal noted that the Applicant's visa was subsequently cancelled on 16th December 2003 and his children's Subclass 457 visas were consequently cancelled under s.140(1) of the Act.
The sponsoring business, I-Com Group Pty Ltd, had applied to the Department on 8th May 2001 for approval as a business sponsor. The nomination was approved on 16th May 2001 and the Applicant was nominated by the approved business sponsor for the activity of Web Designer. The Tribunal noted, however, that the Department noted that a site visit was made at the business address in Sussex Street, Sydney. The Department sent a form to I-Com Group on 20th April 2003 requesting that it complete the form for monitoring purposes. The Departmental officers visited I-Com Group's notified premises on 28th May 2003 but found no evidence that they were operating there.
The Department sent a further form to I-Com Group but did not receive a response. The Department found that I-Com Group had not complied with the sponsorship undertakings it made to the Department in accordance with form 1067 and found that I-com Group no longer satisfied the requirements for approval as a business sponsor.
On 19th November 2003, the Applicant was issued a written Notice of Intention to Cancel a visa. The Notice set out the Department's efforts to monitor the sponsor, I-Com Group. The notice said that it appeared that I-Com Group had not complied with its sponsorship undertakings by cooperating with the Department's request to provide monitoring information.
The Notice set out grounds for cancellation under s.116(1)(g) and r.2.43 and invited the Applicant to comment. The Applicant failed to respond to the notification within the prescribed period and the letter was returned to the Department on 25th November 2003 marked "Return to Sender. Left Address."
On 16th December 2003 the delegate proceeded to cancel the Applicant's visa under s.116(1)(g) of the Act and r.2.43(1)(l)(i) and (ia), on the basis that the sponsor no longer satisfied regulation 1.20D(2)(f) and therefore no longer satisfied the requirements for approval as a business sponsor.
The Tribunal noted the previous proceedings and then referred to the letter on 25th May 2006 under section 359A of the Act, inviting the Applicant to comment. The Tribunal noted the Applicant's responses and noted the Applicant's further submission.
The Tribunal noted the Applicant's evidence that he had been introduced to I-Com Group as a possible employer by his then migration agent. He had reported to work there. He had first taken an English language course before he started to work. There was only one other person working at the premises. The Applicant found the work environment to be poor and had difficulty settling into Australia, became depressed and was admitted to hospital on 30th January 2002 and discharged in mid-February. At the advice of his employer he took sick leave.
The Applicant said that he had paid $3,000.00 for his work during the three months and had been paid in amounts of $1,000.00 but the business was not doing well and the employer could not pay more. The Applicant was in a serious car accident on 2nd July 2002 and was hospitalised for three weeks. In December 2002 he spoke to his employer by telephone. By March 2003 he was well enough to return to work but could not get in touch with his employer. When he went to the business premises in Pitt Street, the office was no longer there. He discussed the matter with the agent, who claimed no knowledge of this and the agent advised him to look for another sponsor but was not able to assist him.
The Applicant claimed that he had not received the Notice of Intent to Cancel the visa because it had been sent to a place where he had not worked. He said he knew nothing of the notice or the cancellation until his agent had gone to the Department to lodge Student visa applications for his children.
The Applicant referred to hardship that would be caused to him and his children if the visas were cancelled. He said he and his children had been in Australia for five years and his wife was still in Korea. Although she wanted to join them, she was running the family business in order to support them and if he return to Korea it would be very difficult for him to find employment because of his age. He had used his savings and no longer had any funds. His children were still studying and wanted to complete their studies. His son was in year 10. His daughter had left school after year 10 and was studying patisserie making at Le Cordon Bleu catering college. He hoped that the children's Student visas could be resolved and that he could stay with them and look for work.
The Applicant's both gave evidence about their study programs and their desire to complete them. The daughter said that she hoped to go on and study for a further award in Adelaide once she completed her current course. She had arrived in Australia when she was 14. She was then 18. She hoped that they could stay and the father could find work and their mother could join them. The parents had been separated for five years. The Applicant's son said he had come to Australia when he was 11. He had now reached the age of 16 at the time of the hearing and he wanted to stay to undertake an interior design course at TAFE.
The Applicant later submitted evidence of his children's studies and his representative submitted that the children would not be eligible to be granted further Student visas as the schedule for risk factors would apply. If they could not be granted Student visas, this would cause them undue hardship as their education would be severely disrupted.
The Tribunal’s Findings and Reasons
The Tribunal signed its decision and handed the decision down on 18th August 2006. A copy of the Tribunal decision record can be found at pages 244 through to 260 of the Court Book. The Tribunal's findings and reasons can be found at pages 250 through to 259, however, the Court Book contains some duplication of pages and the findings and reasons appear twice. The findings and reasons first appear at pages 250 to 254 and again at 255 to 260.
The Tribunal approached its task by stating that it must first decide whether the ground for cancellation under s.116 identified by the delegate had been made out. If satisfied such a ground existed and it was not a circumstance prescribed in r.2.43, the Tribunal then had to decide whether to cancel the visa having regard to all the relevant circumstances.
The Tribunal noted the Applicant's submission that the purported cancellation by the Department was a nullity for two reasons. First, that the notice was not sent to the Applicant's notified address, and secondly it referred to considerations of the Department rather than the Minister. The Tribunal found:
At the time the Notice was sent, s.119 required the Minister to notify the review applicant that there appeared to be grounds for cancelling the visa and to give particulars of those grounds and of the information because of which the grounds appear to exist.
The Act further provides that the holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate. Regulation 2.55 prescribes the ways that an applicant can be notified at the time the Notice was issued. It states relevantly:
(1) This regulation applies to:
(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
(3) For a document mentioned in paragraph (1) (a) or (c), the Minister must give the document in one of the following ways:
…
(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person's last residential address, business address or post box address known to the Minister…[4]
[4] See Court Book at page 256
The Tribunal noted that the Regulations required only that the notice be posted in the appropriate way to the last known residential or business address as opposed to the notified address for service as stated in the submissions. The Tribunal noted also that the evidence on the Department file was that the notified address for I-Com Group Pty Ltd was in Sussex Street at the time the monitoring was conducted although the Tribunal accepted that in the form submitted for approval as a business sponsor two years previously, I-Com Group had stated that its postal address and the location of the position were in Pitt Street.
The Tribunal did not accept the submissions that it was within the Tribunal's power to find that the cancellation of a visa was a nullity. Although the visa would have expired by the date of that decision. Even if it had not been cancelled, the Tribunal considered that the decisions in Zubair and Ahmed were authorities for the Tribunal to undertake merits review of the visa cancellation. The Tribunal considered the decision in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248.
The Tribunal noted the Applicant's argument that r.2.43(1)(l)(i) is only applicable if there is an existing nomination in respect of a person under r.1.20G and or 1.20GA. The argument was that Regulation 1.20H(5) provides for a nomination to cease 12 months after approval or when the Subclass 457 visa is granted. In this case as more than 12 months had elapsed since the approval and the visa had been granted, the representative for the Applicant submitted that no nomination existed and that the grounds for the cancellation did not exist.
The Tribunal did not accept that submission holding that Regulation 1.20H(5) does not indicate that a nomination under r.1.20G ceases to be in effect but that the approval of the nomination ceases to be in effect. The Tribunal found that there was a nomination of an activity under r.1.20G and proceeded to review the decision to cancel a visa. The Tribunal considered the evidence and was satisfied that the ground for cancellation in s.116(1)(g) did exist and then proceeded to consider whether the power to cancel a visa should be exercised.
The Tribunal considered whether to exercise its discretion to cancel the Applicant's visa and noted that it had regard to the relevant circumstances, including but not limited to matters identified in the policy guidelines. They are as follows:
·the purpose of a visa holder's travel to and stay in Australia.
·the extent of non-compliance with any conditions.
·the degree of hardship which may be caused to the visa holder and any family members.
·the circumstances in which the ground for cancellation arose.
·the person’s behaviour in relation to the Department, not and on previous occasions.
·any other matters the visa holder raises.
·any other relevant considerations.[5]
[5] See Court Book at page 258
The Tribunal found that the Applicant came to Australia to obtain work and for his children to be able to study in Australia. He had located an employer and a sponsor and obtained a visa that was valid for a four year stay. The Tribunal also noted that the Applicant's visa was subject to condition 8107 that the holder must not change employer or occupation without permission in writing. The Applicant did not change the employer, claims he was treated for depression. He had not returned to work. In July 2002, he was involved in a car accident and he did not return to work after that. He did not notify the Department of that. The Tribunal found:
The Tribunal accepts that the review applicant may not have intended to breach the visa condition, or that he may have assumed that any notification of his changed circumstances would be made by his agent, but the Tribunal finds that apart from an initial period of about 3 months the review applicant did not work for his sponsor at all between the grant in May 2001 and its cancellation in December 2003.[6]
[6] See Court Book at page 258
The Tribunal noted the Applicant's claims of hardship: first as it would be difficult for him to find work again in Korea and also that he had exhausted his savings. However the Tribunal noted that the Applicant had left work after three months because he was finding it difficult to cope with the work and settle in Australia and was not able to find another employer to sponsor him when he began to look for work in March 2003. When the visa was cancelled nine months later he still had not found employment and relied on his wife's business in Korea for income. The Tribunal did not accept that the Applicant's economic future would be any more difficult in Korea than it had been in Australia.
The Applicant also claimed that it would cause hardship to his children if they were not able to finish their studies in Australia and the Tribunal noted that they had been in Australia for five years and would find it difficult to settle back in Australia [sic][7]. The Tribunal accepted that the Applicant's children had spent an important part of their adolescence in Australia but commented that the daughter had completed her secondary education to year 10 and was studying at a college and the son had not completed year 10 at that stage. The Tribunal was of the view that the children could complete their education in Korea, even with some disruption. The Tribunal noted that the family had given evidence of hardship because of the prolonged separation from their mother and if the family were to return to Korea they could be reunited with their mother.
[7] Clearly the applicant meant “Korea”.
The Tribunal summarised its conclusions in this way:
The circumstances of the cancellation are those after the review applicant's employer failed to comply with monitoring requirements. The employer has not maintained contact with the Department or the review applicant. The review applicant has worked for the sponsor for only a short period. Despite his prolonged illness the employer did not notify the Department of the review applicant's inability to work and its own inability to maintain his employment. It did not notify the Department of its failure to repatriate him.
The Tribunal accepts that the review applicant did not deliberately flout the migration law or the conditions of his visa and that once notified of his situation he has been co-operative with the Department.
Nevertheless taking into account all the circumstances of the case the Tribunal finds that the reasons for cancelling the visa outweigh the reasons for not cancelling. The review applicant has failed to find an employer to sponsor him. The visa he was granted was a temporary one for a stay of 4 years. The period of validity if it had not been cancelled was only until 16 May 2005. The review applicant and his children may not have been able to extend their visas. The Tribunal accepts that the review applicant's main concern is that his children be permitted to stay in Australia at least until they have completed tertiary education and possibly in a position to apply for permanent residence.[8]
[8] See Court Book at page 259
The Tribunal was not satisfied that the children would be assessed as a risk factor and excluded and noted the children's visa's were not cancelled under s.116 but were cancelled as a consequential cancellation under s.140(1) of the Act.
The Tribunal concluded that the visa should be cancelled and affirmed the decision to cancel the Applicant's Subclass 457 (Business) (Long Stay) visa.
Application for Judicial Review
The Applicant, in his amended application, sets out several grounds, not all of which were pressed.
a)Ground 1(i) was not pressed and I shall not refer to it further. Ground 1(ii) and (iii) is that the Migration Review Tribunal misinterpreted the applicable law by finding it had jurisdiction to affirm the decision under review.
b)Ground 2 is that the Migration Review Tribunal failed to take into account a relevant consideration when exercising its discretion to affirm the decision.
c)Ground 3 is that the Migration Review Tribunal took into account an irrelevant consideration when exercising its discretion to affirm the decision. Ground 3 was not pressed.
d)Ground 4 is that the Migration Review Tribunal made a material finding of fact in the absence of probative evidence to support that finding.
e)There was a Ground 5(i) that was not pressed.
f)Ground 5(ii) was that the Tribunal failed to take into account the claim of Yoen Soo Kim that one of the reasons why the Applicant's visa should not be cancelled was because she could not adapt to Korean culture and education because she became integrated in Australian culture and also because she found studies in Australia at Cordon Bleu that suited her aptitude. Ground 5(iii) was not pressed. Ground 5(iv) was that the Tribunal failed to take into account the Applicant's claim that a cancellation of his visa would adversely affect his entry to other countries, having to declare the cancellation when asked if he had to leave a country to avoid removal or if he had a visa cancelled. Grounds 5(v) and 5(vi) were not pressed.
Applicant’s Submissions
In support of those claims, in respect of Grounds 1, 2 and 4, the Applicant, through his solicitor Mr Dobbie, submitted that the Tribunal erred by finding that it had jurisdiction to affirm the delegate's decision as the Applicant's visa was not cancelled by a delegate of the Minister and expired before the MRT made its decision. This was because the Applicant was not given a prescribed notice by the delegate before the purported cancellation was made. (See s.124 and s.116 of the Act). The Applicant conceded that the Court was bound by the authority of the Federal Court. It was found that the MRT does have jurisdiction to affirm the decision, even where the requisite notice prescribed by law as a condition precedent to the valid exercise of the cancellation power by the delegate has not been given
As to Ground 2, that the Tribunal failed to take into account a relevant consideration when excising its discretion to affirm the decision, the Applicant contented that the Tribunal failed to take into account relevant considerations.
Ground 3 was not pressed.
Ground 4, the Migration Review Tribunal made a material finding of fact in the absence of probative evidence to support that finding. The Tribunal found that the Applicant's children could complete their education in Korea when there was no evidence that the Applicant's daughter, Yoen Soo Kim, known as May Kim, would have been able to enrol in and complete her Cordon Bleu course in Korea. The evidence was to the contrary, in so far as Ms Kim had stated that:
i)she could not adapt to Korean culture and education because she had become integrated with Australia culture;
ii)she found studies in Australia at Cordon Bleu that suited her aptitude.
iii)that she not really good at study in Korea.
Making a finding of fact based on evidence that did not exist is a jurisdictional error (See Minister for Immigration & Multicultural Affairs v Yousef 75 ALJR 1105).
As to Ground 5, the Tribunal failed to take into account the claim of Yoen Soo Kim that one of the reasons why the Applicant's visa should not be cancelled was because she could not adapt to Korean culture and education because she had become integrated with Australian culture and also because she found studies in Australia at Cordon Bleu that suited her aptitude, the Tribunal accepted that the children had been in Australia for five years and would find it hard to settle back in Korea.
The Tribunal also found that the children had spent an important part of their adolescence in Australia. However, the Applicant's submitted that this did not address Ms Kim's claim that she could not adapt to the Korean education system, especially as she did not appear to be able to study well in Korea. As she put it: ‘My parents always worried about me because I was not really good at study in Korea,’ whereas she was studying well at Cordon Bleu in Australia.
In respect of Ground 5(iv), the Applicant submits that the Tribunal failed to take into account the Applicant's claim that a cancellation of his visa would adversely affect his entry to other countries, having to declare the cancellation when asked if he had to leave a country to avoid removal of if he had a visa cancelled. The Applicant submitted that the Tribunal failed to take it into account, as shown by the Tribunal's summary of the consideration set out in the letter dated 13th June 2006 and appears to have overlooked that matter and appears to have overlooked its significance.
The failure to take into account a relevant consideration is a jurisdictional error (See Minister for Immigration & Multicultural Affairs v Yousef to which I have previously referred). It does not automatically flow that because a decision maker does not address every claim put forward in the decision record that the claim was not considered. (See Nicholas Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747 per Hely J at [37] – [41]). In the present case, however, the Applicant submitted that the Tribunal did not take into account the relevant considerations.
First Respondent’s Submissions
For the Respondent Minister, Mr Markas, solicitor, noted that the submissions going to jurisdiction by the Applicant were a formal submission only and that the ground pressed by the Applicant related solely to the manner of the exercise of the discretion available to the Tribunal not to cancel the Applicant's visa and no grounds were raised regarding any findings by the Tribunal in relation to the pre-condition for cancellation being satisfied.
As to the Applicant's first grounds, Grounds 1(ii) and 1(iii), they related to an argument as to whether the Tribunal had jurisdiction to affirm the delegate's decision. The First Respondent noted that the Applicant accepted that the Court is bound by Full Federal Court authority and that the Tribunal does have this jurisdiction and that the submission was formally made in order to preserve the Applicant's appeal rights. The solicitor for the First Respondent submits that based on present authority, the Tribunal is correct to hold that it had jurisdiction to review the delegate's decision.
The next ground pressed, as Mr Markas noted, was Ground 2(ii) which was mistakenly referred to as Ground 5(ii) in the written submissions. That ground asserted that the Tribunal failed to take into account the evidence of the Applicant's daughter contained in a letter. He submitted, however, that Tribunal in considering that issue made this finding:
They (they children) have been in Australia for 5 years and would find it difficult to settle back in Korea. The Tribunal accepts that the review applicant's teenage children have spent an important part of their adolescence in Australia. However, his daughter has completed her secondary education here to year 10 and is studying at a college… The Tribunal is of the view that the children could still complete their education in Korea, albeit with some disruption.
Mr Markas submitted that the Tribunal clearly had the previous Tribunal's file before it and the reference to the children finding it difficult to settle back in Korea and the fact that there would be disruption to their studies demonstrated that the daughter's concerns were considered by the Tribunal. It was not necessary for the Tribunal to recite and refer to each piece of evidence before it and the Tribunal's reasons disclose that the daughter's earlier statement to the first Migration Review Tribunal expressing her concern about returning to Korea and her preference for remaining in Australia were considered and that that ground has no substance.
The next ground was Ground 2(iv), mistakenly referred to as Ground 5(iv). That ground claimed that the Tribunal failed to take into account the Applicant's claim that the cancellation would adversely affect his entry to countries other than Australia. The Tribunal specifically referred to that submission which dealt with that issue at page 249 of the Court Book where it stated that the submission made was to the following effect “Cancellation of the visa would reflect adversely on the review applicant in relation to further visa applications”. He submitted that the Applicant's complaint appeared to be that because the Tribunal did not specifically recite the complaint, that the Applicant would have to declare the cancellation when travelling to other countries, this aspect of the submission was not considered.
Mr Markas submitted that the Tribunal does did not restrict its reference to Australian visas, so there was no basis for the Applicant to assert that the Tribunal was only considering the Australian situation. Further he submitted that there was nothing in the reasons to suggest that the Tribunal was not considering the general issue of the effect that cancellation would have on the Applicant in relation to future dealings with immigration officials, whether in Australia or in some other country.
However, the main focus was on the effect that a cancellation would have on the Applicant to remain in Australia to look after his children. He submitted that there was no error in the Tribunal's reasons and that the Applicant's argument invited the Court to engage in the kind of minute examination of expression used by the Tribunal which was considered inappropriate by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors 185 CLR 259 at 272.
As to Ground 4, which is a new ground that ground asserted that the Tribunal found that the Applicant's children could complete their education in Korea when there was no evidence that the Applicant's daughter would have been able to complete the course she was presently enrolled in. He submitted that this overstated the findings of the Tribunal and the Tribunal was not purporting to hold that the Applicant's daughter would be able to continue being enrolled in her Australian course despite returning to Korea. He submitted that the Tribunal was actually considering the degree of hardship on the Applicant's children if they were to return to Korea.
In considering that issue the Tribunal noted that the Applicant's son was in year 10 at high school and the daughter was enrolled in a college. The Tribunal stated that the Tribunal was of the view that they could complete their education in Korea albeit with disruption. The Tribunal was not purporting to make a finding that the Applicant's daughter would remain in the course in which she was currently enrolled and the Tribunal was, of course, not seeking to hold that the Applicant's son would remain enrolled in his high school in Sydney. In view of the fact that the Applicant's children were nationals of Korea, the Tribunal was entitled to observe that they would be able to pursue studies in Korea, even though their studies would be disrupted and their wish was to remain in Australia. He submitted that there was no jurisdictional error.
I am satisfied that the submissions on behalf of the Respondent Minister are correct. As far as the jurisdictional claims made by the Applicant, in my view the Federal Magistrates Court is bound by the decision of the Full Court of the Federal Court which found that the Tribunal does have jurisdiction to affirm the decision, even where the requisite notice prescribed by law is a condition precent to the valid exercise of the cancellation power by the delegate has not been given.
The real grounds being argued relate to the discretionary matters I am not of the view that the Tribunal failed to take relevant considerations into account relating to the Applicant's children when exercising its discretion to affirm the decision. As submitted on behalf of the First Respondent Minister, the reasons for decision make it clear that those considerations were both understood by the Tribunal and considered by the Tribunal. The Applicant's claim that a cancellation of a visa would reflect adversely on him was a matter that the Tribunal took into account and the Applicant's situation generally relating to his difficulty in obtaining employment in Korea was a matter that was also considered.
As to the ground that the Applicant's children could complete their education in Korea, I am of a view that there was evidence available to the Tribunal which enable it to make the findings that it did. There is no doubt that the children were and are citizens of the Republic of Korea and would be able to complete their education even though they would not necessarily be able to remain enrolled in the same courses or institutions which was currently the case in Australia. In my view there was evidence to support the Tribunal's finding.
In short, I am not satisfied that the Tribunal has made any jurisdictional error and I consider that the decision was a privative clause decision as defined by s.474 of the Migration Act. I propose therefore to dismiss the application.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 18 September 2007
0
2
1